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Metropolia beats Moscow in court

In the Supreme Court cases Kedroff v. St. Nicholas Cathedral and its successor Kreshik v. St. Nicholas Cathedral, the highest court in the country ruled against the Metropolia and in favor of the Moscow Patriarchate in a dispute over church property. But Moscow didn’t win all the time. The 1962 Ohio Court of Appeals case St. Peter and St. Paul’s Church of Lorain, Ohio v. Burdikoff had the opposite outcome, which is set forth in a fascinating judicial opinion.

At the outset, the court offers this introduction to the Orthodox Church as a whole:

The temptation is very great to detail the history of the Orthodox Greek Catholic Churches of the Eastern Confession. The historical development of Christianity in the eastern churches is a subject that is not stressed in our schools, yet out of the Greek Catholic Churches much of the early foundation of the Christian Church was formed. The lives of its saints, and writings of its scholars, are worthy of emulation and study.

Not exactly what you’d expect to read in a secular judge’s opinion, huh? Anyway, onto the case.

Ss. Peter and Paul Church in Lorain, OH was founded in 1912 under the Russian Archdiocese of North America, which in turn was under the Russian Orthodox Church. At the 1924 All-American Sobor, the Archdiocese declared itself to be autonomous of Moscow, transforming itself into the “Russian Metropolia.” The Lorain parish formally submitted to the Metropolia by 1925. In February of that year, the parish filed an action in court to transfer the title of its property from Archbishop Alexander Nemolovsky (who had been the Russian primate in America) to the parish corporation itself. The court agreed, and title was successfully transferred.

From 1925 until 1960, the Lorain parish was served by clergy under the Metropolia. The parish participated in the Metropolia’s sobors, sent contributions to the Metropolia, and otherwise behaved as a parish of the Metropolia. No one questioned or challenged this fact. The parish didn’t split into pro-Moscow and pro-Metropolia factions, and Moscow itself never tried to take control of the parish.

In 1957, Fr. George Burdikoff became rector of Ss. Peter and Paul. Burdikoff had previously been a priest of ROCOR, but he later joined the Metropolia. Upon arrival in Lorain, he apparently received a 10-year contract to serve as the parish priest. (Incidentally, was this a common thing? It seems really strange to give a priest an employment contract, but the court treats it as an established fact.)

At first, Burdikoff continued to serve under the Metropolia, but in 1960, he secretly switched his allegience to Moscow, whose archbishop then appointed Burdikoff as rector of the Lorain parish. In other words, with Burdikoff’s secret transfer, Moscow now began to claim authority over Ss. Peter and Paul Church.

The court was faced with two questions:

Who has the right to control the parish property – Moscow or the Metropolia?

Is the Lorain parish still bound to fulfill Burdikoff’s 10-year contract?

The biggest question is the first, and the court spends a lot of time addressing it. To begin with, the court reasoned as follows:

The Lorain parish was clearly founded under Moscow. (And I should note here that when the parish began in 1912, the Church of Russia was governed by a Holy Synod, rather than a Patriarch. I’ll refer to “Moscow,” but you should take that to mean “Church of Russia.”)

But in 1925, the parish submitted to the autonomous Metropolia, and Moscow did nothing (with regard to Lorain specifically).

In an interesting (and, to me, deeply flawed) argument, the court pointed out that Moscow and the Metropolia are both members of the World Council of Churches. The WCC only accepts autonomous churches as members; it follows, then (says the court) that by being a WCC member, Moscow must accept that the Metropolia is in fact autonomous.

“Thus for 35 years one autonomous church body has occupied the church building, received dues and other monies, supported its superiors, and the superior church body, the Metropolia. In all this time the church which formerly claimed spiritual and temporal jurisdiction [Moscow] has done nothing to oust the group which it calls schismatic from occupation and control of the Lorain Church. It now seeks to do so by the subterfuge of a priest who has switched allegience when it best served his personal interest.”

As a general rule, when a member parish withdraws from a hierarchical church, they can’t take church property with them. Moscow argued that this rule, combined with the Supreme Court’s opinions in Kedroff and Kreshik, means that they should win. The court disagrees. Kedroff and Kreshik don’t apply here, the court says, because in those cases the New York government (first the legislature and then the judiciary) tried to transfer church property from Moscow to the Metropolia. Here, that’s not happening — in fact, Moscow is trying to get the Ohio courts to support a transfer in the other direction, from the Metropolia to Moscow.

The court continually reiterates that the Lorain parish was under the Metropolia for “35 years” without a complaint from Moscow. This is important because it opens the door to the application of several legal principles:

Adverse Possession. Let’s say that I own a piece of land, but a squatter moves onto that land and starts acting like an owner. I know about the squatter, but I don’t do anything to oppose him. If he does this for long enough, according to the common law principle of adverse possession, he can become the new legal owner of the property. It’s possible to apply this concept to the Burdikoff case — the Metropolia exercised control over the Lorain parish for 35 years, presumably with Moscow’s knowledge but without its opposition. Under adverse possession, if Moscow was the rightful owner, it isn’t anymore.

Laches. Here, the basic idea is that you can’t wait forever to assert a legal right — an “unreasonable delay” in asserting your rights can be interpreted by the courts as a forfeiture of those rights. Here, if Moscow once had the right to control the Lorain parish, they forfeited that right by failing to assert it for 35 years (which fits any definition of “unreasonable delay”).

Estoppel. Similar logic applies here. Moscow may be estopped (forbidden, basically) from asserting its rights over the Lorain parish because it waited so long and knowingly allowed the Metropolia to control the parish for 35 years.

Waiver. More of the same — the idea here being that Moscow essentially waived its rights over the Lorain parish by tolerating the Metropolia’s control over it for so long.

Underlying all of these theories is the principle that you can’t just wait forever to assert a legal right. Whatever rightful control Moscow may once have had over the parish, it lost it by waiting so long.

It’s easier to dismiss Burdikoff’s claim that he had a 10-year contract with the parish. The court found that Burdikoff breached the contract when he submitted to Moscow: “he cannot now be heard to complain that he is deprived of a right under a contract which he himself repudiated.”

Long story short, this is a rare victory for the Metropolia over Moscow.

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Unbenounced to him, the judge ruled in full accord with the Holy and Sacred Canons. From the Pedalion (which is a recognized part of American common law on such matters: Johnathan v. Shea, 19 Cal. App. 3d 328, 330-1; Martinelli v. Dugger, 817 F.2d 1499, 1505):

Ecumenical Council of Chalcedon:17. As touching rural parishes, or country parishes, in any province, they shall remain in the undisputed possession of the bishops now holding them, and especially if they have held them in their possession and have managed them without coercion for thirty years or more. But if during a period of thirty years there has arisen or should arise some dispute concerning them, those claiming to have been unjustly treated shall be permitted to complain to the Synod of the province. But if anyone has been unjustly treated by his own Metropolitan, let him complain to the Exarch of the diocese, or let him have his case tried before the throne of Constantinople, according as he may choose. If, on the other hand, any city has been rebuilt by imperial authority, or has been built anew again, pursuant to civil and public formalities, let the order of the ecclesiastical parishes be followed.

Interpretation.
Rural parishes are small parishes which are situated in outlying and distant parts of the country, and being inhabited by few human beings they used to be called monoecia (which word meant, in Greek, “lone habitations”). Country parishes, on the other hand, are parishes which were near cultivated fields and villages, and had a greater number of inhabitants. So it is these parishes in every province that the present Canon commands to remain inalienable and indetachable from the bishops to whom they belong, and especially if they have belonged to them and been under their authority for as many as thirty years in good faith and without coercion, that is to say, without their being forced to submit to it and without their being grabbed up on an unjust or unfair pretext. But if during the course of the thirty years there had arisen any dispute concerning them, or if after the enactment of the present Canon there should arise any dispute concerning them, those who claim to have been unjustly treated in regard thereto are given permission to have their dispute considered by the Synod of the province. If, again, anyone should claim to have been unjustly treated in regard thereto by his Metropolitan, let him refer his case to the Exarch and chief head of the diocese (whose function, however, was abolished or fell into desuetude after this Fourth Ec. C. was held, as we said in Footnote to c. IX of the present C.), or to the Bishop of Constantinople, as previously stated. If, on the other hand, there has heretofore been built any city by imperial authority, or if any be so built hereafter, then the neighboring bishop shall not try to subject it to his own authority and claim it as a parish of his own, since the order of the parishes of that church have to follow the civil laws and ordinances which may be decreed by the emperor in regard to the newly-built city, not vice versa.

Note that, after dividing this Canon into two sections, the Sixth Ec. C. incorporated in its own c. XXV that part of this present canon which ends with the words “complain to the Synod of the province,” while it incorporates the words following these to the end in its own c. XXXVIII. Note also that c.CXXIX of Carthage prescribes that if any bishop succeeds in converting any region of heretics to Orthodoxy and holding it for three years straight, without its being reclaimed by the one who ought to have reclaimed it, it shall no longer be subject to being reclaimed by him. The same Council’s c. CXXVIII declares that heretics converted to the catholic unity shall be subject to that throne to which the catholic union of Orthodox Christians situated therein had been subject of old. In addition, c. CXXX says that in case anyone deems any laity belonging to another to be wrongly held by him and appropriates it as his own, not by virtue of letters of the bishop possessing it, or at the request of the Council or Synod, but by despotism and assault, he shall lose that laity, even though it really were his, and even though he assert that he had letters from the chief head. Read also the Interpretations of Ap. c. LXXIV, of c. VI of the First Ec. C., and c. IX of the present Fourth Ec. C.

Ecumenical Council of Quinsext c. 25. In addition to all the others we renew the Canon which prescribes that the rural or district parishes belonging to each church are to remain immutably assigned to the Bishops holding them, and especially in the case of those who managed to hold them for a period of thirty years without resorting to force. But if within thirty years there has been, or should be, any dispute about them, those who claim to have been wronged shall be permitted to bring the matter before the Synod of the province.
Interpretation.
The present Canon renews c. XVII of the 4th, which it quotes verbatim, though not all of it, but only a part of it; wherefore see also the Interpretation of it there.

These are based on the precedent of the Councils of Carthage (which “promulgated one hundred and forty-one Canons relating to the good order and constitution of the Church; they are those which follow, sealed and confirmed definitely and by name in c. II of the holy Sixth Ecumenical Council, but generally and indefinitely by c. I of the 4th, and by c. I of the 7th. Its c. LXXXIX is cited verbatim by the holy Fifth Ecumenical Council; and by virtue of this confirmation they have acquired a force which is in a way ecumenical”), which resembled North America as the Orthodox formed islands among the heterodox (in the ancient case, the Donatists):

canon 128. It has pleased the Council, since some years ago it was laid down as a rule in this Church filled with the Council that any churches established in a diocese before the laws concerning Donatists were promulgated should become catholic and belong to those thrones at the suggestion of whose Bishops they were prevailed upon to join the catholic unity. But after those laws were made any churches that joined it should belong to those thrones to which they belonged even when they were on the side of Donatus. And many altercations arose later between the Bishops and continue to arise as regarding the dioceses, for which it seems that inadequate provision was made at that time. Now in this holy Council it has pleased us to decree that wherever a catholic church was established on the part of Donatus, and there were churches belonging to different thrones, if at any time a union occurred there, or shall occur in the future, whether before the laws or after the laws, they shall belong to that throne to which the catholic church belonged which existed there of old, so that thus, that is to say, if any Bishops returned from the Donatists to the catholic unity, they shall divide equally between them the dioceses thus situated where both parties were, that is, in order that some regions may belong to one part, and som,e to another in such a way as to let the older one in the Episcopate apportion, and the newer one select them. If, however, it should chance that there is but one region, let him take that which is situated in closer proximity. If it be equally close to both thrones, let it be ceded to that one which the multitude may choose. If it should chance that the ancient catholics want the same region, and those who have reverted from the party of Donatus want the same one, let the opinion of the majority be preferred to that of the minority. But if the parties are equal, let the older Bishop have it. If thus, however, there be found a great many regions in which both parties are to be found, so that they cannot be divided equally, the number of such regions being unequal, let the equal numbers be divided first, and to the one that is left let this be reserved which has been stated above when the question was one of a single region.
(cc. LV, LXVI, LXXV, LXXVI, LXXVII, LXXVIII, CI, CII, CXXIX of Carthage.).
Interpretation.
Because of the fact that many doubts arose among the bishops as to which of them should take the ones reverting from the Donatists, the present Canon decrees that before the Imperial laws concerning unity were enacted it was decreed (Canon CX) that they should be subject to that bishop from, whom they returned, but after the laws they should be subject to the catholic bishops in the districts nearest to the Donatists. Now again for complete solution of the doubts arising the Council decrees that the regions of the ones reverting from the Donatists should be subject to that bishop to whom the Orthodox church used to belong which had been situated of old in the region of the Donatists. That is to say in such a way that if the regions were situated between two bishops reverting from the Donatists, both bishops were to divide them between themselves, and the earlier one was to do the dividing, and the later one was to do the choosing. But if there was only one region about which they were fighting, it was to be subject to the one nearest to it, in adjacency. Or if it bordered equally close to both their thrones, it was to belong to that bishop whom the multitude wanted. But if both bishops demanded the same region in its whole and undivided entirety, the opinion of the majority was to prevail over that of the minority. If, on the other hand, both parties were equal, the older one was to have jurisdiction of the region. Or if there were many regions, both bishops were to divide them as equally as they could between themselves, share and share alike; and if there remained a single odd region, it was to be subject either to that one who was the nearest neighbor to it, or to that one whom the multitude wanted; if the parties were equal, then it was to be subject to both. Read also c. LV of the present C.

canon 129. It has pleased the Council to decree that if anyone after the (enactment] of the laws causes any region to revert to the catholic unity and holds possession thereof for a space of three years without anyone seeking to take it away from him, henceforth it shall not be taken away from him. If, however, within the said space of three years there was a Bishop who was entitled to it and he went to rest; but if there was not, let him not be prejudice in the Matrix, but when the vacant region gets a Bishop, let it be permissible for him to take possession of it from that with a space of three years. Likewise, on the other hand, if a Bishop reverts from the Donatus parties to the catholic Church, let his position in the Matrix not be prejudiced as respects the length of time intervening, but, on the contrary, from the day that he returned, let him have the right to retrieve the places belonging to his see at any time within the space of three years.
(c XVII of the 4th; cc. LV, LXVI, LXXV, LXXVI, LXXVII, CI, CII, CX, CXXVIII, CXXXI of Carthage.).
Interpretation.
This last Canon too, concerning the places of the Donatists and in general that have reverted from heretics, prescribes that if any catholic bishop, after the adoption of the laws respecting unity (see c. CX), persuades a region of heretics to return to Orthodoxy, and holds it for three years without its being claimed by anybody else, after the expiration of the three years no one shall be allowed to take it away from him. But if that episcopate to which the place in question belonged had no bishop, and within a space of three years a bishop is ordained to it, he shall be allowed to claim the place as his own, and he shall not be detrimentally affected in the Matrix, or, at any rate, he shall not suffer any injury and lose that place by reason of the fact that the place in question was listed in the original Matrix and register of the foreign church assigned to him; but, on the contrary, he shall get it back, provided he claims it within three years. Likewise if even a Donatist bishop reverts to Orthodoxy, he too from the day that he reverted may claim the place which belongs to him but which had been occupied during or within three years by another catholic bishop. See also c. LV of the present C., and c. XVII of the 4th.

canon 130. It has pleased the Council to decree that if any Bishops whatsoever claiming the multitudes whom they think to belong to their throne (or see) do so not by having other Bishops decide their claim, but by resorting to a different means of imposing their will upon the laities, whether the latter want them or not, they shall suffer the loss of them because of their own action. And if any Bishops whatsoever have done this, without consulting the convention of the Bishops in the meantime, but are still quarreling about the same matter, that one shall be removed thence who is shown to have taken possession without having recourse to the ecclesiastical judges. And let no one flatter himself if he has received letters from the primate granting him possession; but, instead, whether he has such letters or not, he should contact the one in possession and receive letters from him to show that he has taken possession of the church belonging to him in a peaceful manner. If, however, that Bishop too opposes him with a counterclaim, let this matter too be adjudicated by Bishops sitting as judges in regard thereto, whether they be assigned by the Primate or be chosen by common consent from among neighboring bishops.
Interpretation.
The present Canon forbids bishops to employ civil authority; instead, must claim the laities they think they are entitled to by obtaining a judgment or judicial decision from their bishops in approval of their claim. But if they try to take them over by resorting to force wielded by the civil authorities, whether the laities in question want them as bishops or not, they shall lose such laities even though they were entitled to them because of their resorting to the forces of the civil authorities. Again, even if two bishops fighting over these laities come to trial before the bishops, but before the trial has been finished they are found to be still quarreling about the matter, and one of them ignores the judgment of the bishops and resorts to force by taking possession or seeking to take possession by means of aid obtained from the civil authorities, he too shall lose those laities, even though he was entitled to receive them. Let no one flatter, or, more plainly speaking, delude, himself and resort to such civil force on the pretext that he has received letters from their Metropolitan to take that laity. For, whether he has such a letter or not, he must also obtain a letter stating that he has received the church belonging to him from the bishop previously occupying it, by peaceful means (if he fail to do this, he is to forfeit his right). But if the bishop sued likewise sues the suer, this dispute is to be decided by bishops, whether they be those whom the Metropolitan may appoint, or those whom they themselves may choose from among neighboring bishops and bishops in nearby territories. Read also c. XVII of the 4th.
canon 131. It has pleased the Council to decree that if any Bishops whatsoever neglect the regions belonging to their see, and fail to exert themselves with a view to inducing them to unite with the catholic Church, and are indicted by the diligent Bishops neighboring them, they must not delay doing so. For. unless within a space of six months from the day a convention was held in regard thereto they accomplish something in this direction, the regions in question shall be turned over to whomsoever is able to convert them. Provided, however, that if the Bishop to whom such regions are shown to belong intentionally displayed negligence on account of some desired economy, this having been chosen by the heretics, with a view to coaxing them back to the catholic Church quietly; yet, his diligence has been anticipated by another, though by abusing it he has succeeded in making the same heretics resentful of him, when the case is tried before a court of Bishops, the regions shall be restored to him by their decision. Or if the Bishops acting as judges be from different provinces, that Primate shall appoint the judges in whose district the region is which is in dispute. But if by common consent judges are chosen who are neighbors, whether one is chosen or three are chosen. And if three are chosen, and they decide alike, either to follow the decision of the majority or that of two, it shall not be permissible for on appeal to be token from the decision of the judges chosen by common consent. Whosoever is proved to be unwilling, owing to his waywardness, to obey the judges, when this is brought to the attention of the Bishop of the chief sec, he shall give letters prohibiting any of the Bishops from communing with him until he does obey.
(Ap. c. LVIII; c. XXV of the 4th; c. XIX of the 6th; c. XVI of the lst-&-2nd; c. XI of Sardica; cc. XVI, LXXIX, LXXXII, LXXXVI, CXXXII, CXXXIII of Carthage; c. VI of Nyssa; c. X of Peter.).
Interpretation.
Bishops ought not to neglect the heretics residing in their province, because they shall have to render an account of them and be held responsible for them; but, on the contrary, they ought to make every effort to win them and to convert them to catholic unity, or, more plainly speaking, to the Church. But if they postpone the time, they are to be charged with this procrastination by the bishops of nearby districts. And if, after having had such an accusation laid against them, they again display neglectful-ness, and have failed to make any converts within a space of six months, these heretics together with their regions are to be turned over to another bishop able to convert them. Nevertheless, if the bishop to whom the heretics in question are subject employs seeming negligence on purpose for some economy or other, which the heretics have asked for, in order that they may return peacefully and without the exercise of coercion (seeing that if he were to employ greater diligence and make more strenuous endeavors, they would be hardened on this account), yet another bishop, not aware of this economy, has been in time to convert them — if, I say, this fact comes to light in the course of an investigation and trial conducted by the bishops, all those regions and laities of converted heretics are to be given to the bishop to whom they are subject; as for the bishops who are going to try the case, they are either to be appointed by that Metropolitan in whose province the disputed region and laity of the heretics happen to be, or else they are to be chosen by agreement by these two quarreling bishops. Accordingly, if the latter choose but one bishop to try their case, they shall abide by his decision, on the ground that he was their chosen judge; if, on the other hand, they have chosen themselves three, and these three are in agreement, they shall follow their decision; if one of them, however, fails to agree, they shall follow the decision of the two who do agree, and they shall not appeal their decision to another tribunal. If either one of the two of them obstinately refuses to obey these chosen judges, no bishop shall have any communion with him until he obeys, and letters to this effect shall be issued by the Metropolitan. See also Ap. c. LVIII, and c. XVI of the present C.

Regarding your statement that the Pedalion “is a recognized part of American common law on such matters”: I think that’s a bit of an overstatement.

In the first case (Johnathan v. Shea), the dispute hinged on the interpretation of canon law. When the deceased bishop became a monk, he swore fidelity to the canons. Can it be assumed, then, that the bishop intended to cede his property to the church, or did he (according to the canons he swore to follow) retain the ability to choose to whom his property went? Both parties agreed that the bishop was bound by the canons, but they disagreed on which canons applied, and what they meant. In the second case (Martinelli v. Dugger), the dispute had to do with whether Martinelli’s purported religious beliefs were, in fact, rooted in Orthodox practice. The Pedalion is used to prove this point.

Based on my reading of the cases, neither “recognized” the Pedalion as “part of American common law.” Rather, they used the Pedalion as evidence — in Johnathan, it was used to determine the bishop’s intent regarding his property; in Martinelli, it was used to determine the legitimacy of an inmate’s beliefs. In neither case does the court elevate the Pedalion to the status of law in and of itself. These aren’t church property cases, but in a church property (i.e. internal church) dispute, courts would probably be hesitant to engage the canons even to the extent these courts did.

Anyway, thanks very, very much for posting all this. It’s extremely fascinating.

“Regarding your statement that the Pedalion “is a recognized part of American common law on such matters”: I think that’s a bit of an overstatement.”
LOL. Not in the world of the Common Law, where you can cite as authority on point a case that has nothing to do with the case you are arguing. You can always attempt to distinguish on the difference, but once it’s even just dicta, it takes on a life of its own.

“Both parties agreed that the bishop was bound by the canons, but they disagreed on which canons applied.”
To be fair, would it be any different in a court of canon law?

“In neither case does the court elevate the Pedalion to the status of law in and of itself.”
The court couldn’t do that: it would only come into play in the status of the Orthodox Church as a hierarchal Church according to US law, not Orthodox canon law. The first line of attack, if I were trying to distinguish to stop this a precedent, the first point I would bring up would be that the parties stipulated to the Pedalion. To counter, I would point out that all legal instruments of the Orthodox Church, e.g. the Constitution of the Antiochian Archdiocese (Art. IV GOVERNMENT Sect. 1 The governing code for this Archdiocese shall be the….Sacred Tradition, Holy Canons…) refer to the Holy Canons, of which the Pedalion has been a, if not the, authority.

In the Martinelli case, the issue was whether Martinelli’s belief about hair was indeed part of his purported Orthodox faith. The Pedalion was used as evidence to prove this. It wasn’t cited as AUTHORITY, but as evidence.

In the Johnathan case, the issue was whether the deceased bishop’s property belonged to the church, or not. When he became a monk and swore to obey the canons, did that mean that he intended his property to go to the church? If he had executed a will, presumably the canons wouldn’t have been at issue.

In both cases, the canons were used as evidence — not authority. It’s a significant distinction. The canons were treated like a contract, or a will, or articles of incorporation — an official agreement voluntarily entered into by private individuals.

I think your characterization of common law goes a bit too far — it’s not THAT anarchic.